State ex rel. Townsend v. Hill

• Decision Date: 14 February 1880
• Citation: 4 N.W. 514,10 Neb. 58
• Parties: THE STATE, EX REL. OLIVER TOWNSEND, v. JOHN E. HILL, COUNTY CLERK GAGE COUNTY
• Court: Nebraska Supreme Court

4 N.W. 514

10 Neb. 58

THE STATE, EX REL. OLIVER TOWNSEND, v. JOHN E. HILL, COUNTY CLERK GAGE COUNTY

Supreme Court of Nebraska

February 14, 1880

ORIGINAL application for mandamus.

Peremptory writ of mandamus granted.

T. M Marquett, for the relator.

A. J Poppleton, for the respondent.

COBB, J. MAXWELL, CH. J., concurs. LAKE, J., dissents.

OPINION

COBB, J.

The question in this case arises upon the return of the respondent to the alternative writ of mandamus. The said alternative writ contains the following charge, after the setting out of the submission of the question of the issuing and donating of the county bonds to the railroad company, and the holding of the election, that at the said election there were cast two thousand two hundred and thirty-eight votes, of which number fourteen hundred and forty-eight were cast in favor of the proposition * * * and seven hundred and ninety were cast against the proposition. "That the votes polled in the several precincts were returned to you by the judges thereof, and that you as clerk of said county, calling to your aid two electors of said county, pretended to canvass and count the votes cast at said election, * * * * and with the fraudulent purpose of declaring that said proposition had been carried by the votes of the electors of said county, and without any legal cause whatever, you rejected the votes of Paddock precinct, and neglected and refused to count the same as you were by the law and your official duty required to do, and that you determined the whole number of votes cast for said proposition to be 1,401, and 679 against, instead of the true vote as above stated, thereby making a false record of the votes cast at said election, whereby it would appear that said proposition had been carried, when in fact it was defeated."

To this writ the respondent made return and answer, in which, among other things, he says: "And respondent further says, that the annexed paper marked exhibit "A" is a true and correct copy of the record of said canvass of votes in said county, which respondent prays may be taken as a part of his answer or return in this cause; and that said canvass was completed," etc. By reference to the said exhibit "A" we find the following as a part of the said certificate of canvass: "And we further certify that there are no legal returns of votes from the precinct of Paddock, in said county, for the reason that there is no evidence that all the judges and clerks of said election in Paddock precinct were qualified as provided by law, and for the reason that it appears that one Thomas W. Wing was not qualified to sit as a judge at said election in said precinct, and for reasons not herein enumerated."

By reference to sec. 1, chap. 35, and sec. 20, chap. 13, of General Statutes, it will be seen that the election, return, and canvass of votes of an election, on the subject of the issuing of county bonds to railroad companies or other works of internal improvements, are to be conducted in the same manner as required "at each general election." And by reference to secs. 17 and 18, chap. 20, it will be seen that the duty of the county clerk at "each general election" is as follows: "Sec. 17. Upon the reception of the returns of each election precinct by the county clerk, directed to him as hereinbefore provided, and within six days after the closing of the polls, he, together with two disinterested electors of the county, to be chosen by himself, shall open said returns and make complete abstracts of the votes cast for each several office at said election."

"Sec. 18. After such abstract is made and the votes counted and compared, the person or persons having the highest number of votes for each of the offices * * * voted for at such election, shall be declared duly elected, and the county clerk shall issue a certificate accordingly."

Reading these sections of the statute without reference to authorities or construction, it seems quite clear that it is the duty of the clerk and his two assistants, who are usually--though not very accurately--called the board of canvassers, to tabulate the votes contained in each one of the returns, or in other words, the returns received from each of the precincts, and in ascertaining the result to add up the votes given for each candidate respectively, as returned from each precinct, from which a return of votes has been in fact received. And when we come to look into the authorities and examine the adjudicated cases, we find that the courts, with almost entire unanimity, agree in defining the duties of the canvassers under similar statutes as ministerial, consisting in tabulating and adding up the votes and declaring the result, and in denying to the said board any judicial or discretionary power, or any right to reject or throw out votes which have been in fact returned, for any cause whatever.

In the case of The State, ex rel. Moore, v. Howard, not reported, this court held that where the returns from one of the precincts contained no figures showing the number of votes cast for a point...